McGirt v. Oklahoma: A Just Path for Native Sovereignty

Throughout American history, the law has played a pivotal role in the relationship between the United States government and Native American tribes. As the U.S. sought to expand westward throughout the 19th century, land treaties between the federal government and Native American tribes became a common way for Americans to acquire land and remove Native people. Importantly, the U.S. effort to seize Native land featured extreme violence, and Native Americans often agreed to land treaties only by deceit or under coercion. Still, these land treaties were the formal, legal mechanism to acquire land, remove Native people from their original homes, and designate a new area for Native people [1].

However, over the past two centuries, the U.S. has frequently and flagrantly violated these treaties with Native tribes. Specifically, much of the land sold to Indigenous people, which was meant to remain undivided, was split into smaller plots and sold to non-Native people [2]. Too often, American policymakers and courts have disregarded the treaties and infringed upon Native sovereignty. In 2020, however, the Supreme Court decision in McGirt v. Oklahoma was a major victory for Native American land rights by upholding the status of a 19th-century land treaty that remains valid to this day. The Court’s 5-4 decision represents a path forward in American jurisprudence that respects Native sovereignty and recognizes the strong legal protections Native tribes have against state and federal government interference.

McGirt v. Oklahoma focuses on the legal status of treaties between the federal government and Native tribes; in this case, the treaties affected which body — the state or federal government — has jurisdiction to prosecute crimes committed within recognized reservation boundaries. In 1885, Congress passed the Major Crimes Act (MCA), which specified that certain major crimes committed by a member of a Native American tribe can only be prosecuted by the federal government when the crime in question occurs on land designated via treaty to a Native tribe. In 1997, Jimcy McGirt, the apellant, was convicted of rape in an Oklahoma state court. Both the crime and its location are relevant to the MCA: The MCA includes rape as one of the major crimes that falls under federal jurisdiction, and McGirt committed this crime on land that was granted to the Creek Nation through treaties signed in 1833 and 1856 with the federal government. Because he was prosecuted and convicted in state court, McGirt appealed the decision on grounds that he should have been prosecuted by a federal court, as specified by the MCA [3].

While the facts of the case are relatively straightforward, the Oklahoma state government argued that the MCA did not apply because the relevant treaties were discontinued and thus no longer carried legal weight. However, only Congress through an explicit law can disestablish a reservation and nullify a past treaty [4]. Although no such law existed in this case, Oklahoma argued that other past transgressions against the treaty, and the fact that the land granted to the Creek Nation covers a large portion of Eastern Oklahoma and is home to mostly non-Native people, represent congressional intent to annul the treaty [5]. This argument exemplifies disrespect for Native sovereignty in several ways. Firstly, it acknowledges that the U.S. government has committed frequent, flagrant transgressions against the treaty; however, instead of righting these wrongs by now choosing to respect the treaty, Oklahoma employed them to further erode the legal standing of Native tribes. Secondly, this argument reveals the one-sided nature of the relationship between Native tribes and the U.S. government: The federal government had already violated the treaty without repercussions, and it possesses unilateral authority to dissolve the treaty via an act of Congress.

The dissenting opinion, written by Chief Justice John Roberts, joined at least partially by Justices Thomas, Alito, and Kavanaugh, ultimately accepted the argument from Oklahoma that Congress intended to dissolve the treaty and thus disestablish the reservation, citing the U.S.’ other transgressions against the treaty [6]. Roberts argued that the Court’s decision would negatively affect Oklahoma’s ability to prosecute crimes and cautioned against allowing new trials for all those who were incorrectly prosecuted and convicted at the state level. Here, the dissenting opinion shows misapplication of the law that once again diminishes the legal standing of Native tribes. While it is well-established that Congress must explicitly terminate a treaty in a law, Roberts accepts Oklahoma’s theory that other ambiguous actions could substitute for a clear and explicit dissolution of the treaty. His reasons for this are not grounded as much in the law as in fears of the inconvenient consequences of the decision. However, these consequences should not have any legal weight and carry no significance to the facts of the case. Instead of following the law accurately, Roberts advocates for infringing on Native sovereignty simply because it would force Oklahoma to grant new trials for those unjustly tried by a state court.

In a decision written by Justice Neil Gorsuch, and joined by Justices Breyer, Sotomayor, Ginsburg, and Kagan, a 5-4 majority rejected this argument by emphasizing that Congress never explicitly dissolved the treaties in question and still holds the U.S. government to its word [7]. McGirt’s conviction in state court was nullified, and he was granted a new trial in federal court, where he was convicted once again. In the end, the same fate awaited Jimcy McGirt; however, this case was not merely about McGirt and his individual situation. At its core, the case sought to determine the legal status of land treaties and decide whether the U.S. would be held accountable for centuries-old promises. Thus, by recognizing the Creek land in eastern Oklahoma, the Supreme Court’s decision represents a major victory for Native sovereignty and ensures that Native land will be protected by historical treaties.

In the end, the unlikely coalition of Gorsuch and the four liberal justices prevailed and secured Native land rights, demonstrating that the U.S. continues to have a legal — and ultimately moral — obligation to uphold Native sovereignty. The 19th-century land treaties are deeply flawed, and the history of Native American removal and land seizure are shameful parts of American history. Nonetheless, the decision in McGirt v. Oklahoma accomplishes the minimum necessary action in enforcing these treaties and respecting the land that was granted for tribes centuries ago. Land disputes and jurisdictional issues between Native tribes and state governments will inevitably arise again, and the Court’s decision can serve as a strong precedent to uphold the legal force of these treaties and protect the legal rights of Native people.

References

[1] Kevin Gover. “Nation to Nation: Treaties between the United States and American Indian Nations.” NMAI Magazine. (2014)

[2] McGirt v. Oklahoma, 591 U.S. ___ (2020)

[3] Ibid,

[4] Solem v. Bartlett, 465 U.S. 463 (1984)

[5] McGirt v. Oklahoma, 591 U.S. ___ (2020)

[6] Ibid.

[7] Ibid.